It could have been a scene ripped from the pages of “Brave New World.” Burlington Northern Santa Fe Railway Co. began collecting blood samples in March 2000 from employees who filed workers' compensation claims for carpal tunnel syndrome. The company secretly conducted DNA analysis on the blood samples to determine whether the individuals were genetically predisposed to develop carpal tunnel and allegedly threatened to fire workers who refused to provide blood samples.

When the EEOC caught wind of the company's activities, it sprang into action, alleging the genetic tests violated the ADA. The railroad quickly settled the claims in February 2001, paying $2.2 million to affected workers and agreeing to halt genetic testing. The situation brought into reality what had to that point been the ambit of science fiction–a future in which companies use workers' genetic information to make decisions about their suitability for employment.

The story spurred an outcry for legislation to stop employers from snooping through workers' DNA. Thirty-four states soon passed laws prohibiting employers from collecting genetic information or discriminating on the basis of that information. However, a federal bill to prohibit genetic discrimination stalled in Congress in 2002, 2003 and 2005.

But now, the Democrat-controlled Congress is finally poised to pass the Genetic Information Non-Discrimination Act (GINA), and President Bush has pledged to sign it. If it passes in May, as many observers are predicting it will, the law will take effect in 2008. All employers, even those that have never considered conducting genetic tests, must be aware of the new obligations it will impose on them.

“GINA is ahead of its time,” says Michael A. Zody, a partner at Parsons Behle & Latimer. “While it seems that nothing will be radically different if it passes, employers will need to assess their current practices and see how they line up against the statute.”

Broad Definition

On its face, GINA sets forth four relatively simple prohibitions on the collection and use of genetic information. It prohibits employers from using predictive genetic information when making hiring, firing, placement and promotion decisions; it prohibits employers from requesting, requiring or purchasing genetic information about employees; it requires employers to properly maintain the privacy of any genetic information it has about employees; and it prohibits insurers from denying coverage or adjusting premiums based on predictive genetic information.

But a closer look at the bill reveals some subtleties that may ensnare unwary employers. Chief among those concerns is GINA's broad definition of “genetic information,” which encompasses not only DNA testing, but also information about the occurrence of disease or disorder among employees' family members.

“Employers could inadvertently be gathering 'genetic information' under the statute,” Zody says. “Companies will have to assess whether at any time in their health screenings or post-offer medical exams they're gathering information that will be categorized as genetic information.”

The statute does provide some circumstances under which companies are permitted to collect genetic information–such as to assess the impact of exposure to chemicals on workers. But even under those circumstances, employers must use that information only for the purpose for which it was collected and safeguard its confidentiality.

On top of the concern about collecting new genetic information, employers also must worry about information they already have. If GINA goes into effect, companies may suddenly be saddled with backlogs of “genetic information” that must be handled more carefully.

“There is a blurry line between genetic information and medical information or family history that you get when someone takes a physical or requests FMLA leave,” says Judith Biggs, partner at Holland & Hart. “You'll need to create separate files for genetic information apart from medical information. That will be challenging for even the most contentious employer.”

State Interaction

Another vagary of GINA is how it will interact with state laws. The version of the bill that was percolating through both houses of Congress at press time provided incomplete preemption of state laws, meaning the many state laws addressing the use of genetic information will stay in effect to the extent that they are more prohibitive or assess higher penalties than the federal law.

“This is akin to the current structure of the civil rights statutes,” says Peter Gray, senior staff attorney at the EEOC, which will be in charge of enforcing GINA. “There are a large range of state and local analogues to the ADA and Title VII–some are more restrictive than federal law, some are less.”

This presents several headaches for employers. First, they will have to audit their procedures not only for compliance with the federal law, but also for the state laws in every state in which they operate. State statutes vary widely in their scope and penalties. For example, 25 states have laws that prohibit employers from requiring employees to undergo genetic tests, while 11 states prohibit companies from obtaining genetic test results even if they don't ask or require the employee to take such a test.

The coexistence of state and federal laws will make it particularly tricky for employers to rely on some of the exceptions GINA provides to its prohibition on the use of genetic information. For instance, GINA would allow an employer to obtain genetic information if it provides genetic services as part of a “bona fide wellness program.” An employer might obtain that information, believing it is protected under federal law, only to face a lawsuit under a state statute that has not carved out that exception.

Thus, while many experts are optimistic about GINA because of the exceptions it provides, the state laws may function to nullify them.

“Depending on what the question is, you could have both a federal and state standard that applies,” Biggs says. “Whenever you have different requirements and inconsistency, you have a recipe for litigation.”

Litigation Horizon

That observation may be the ultimate upshot of GINA's passage. Observers agree that if the law goes through, companies can expect at least a temporary spike in litigation, if not a long term one.

“More people will become aware of the issue and there may be something of an increase in claims,” Gray says.

And if litigation under GINA follows in the path of Title VII–upon which GINA's remedies and enforcement regime are explicitly modeled–employers will have to be particularly careful. Plaintiffs that can convince a jury that the employer intentionally misused genetic information will be able to collect equitable relief, compensatory damages, costs, fees and punitive damages.

“Employers will face more suits from terminated employees who now have one more way to come back and say, 'this is why you fired me,'?” Biggs says. “That increases the cost of doing business.”